The case that could blow up American election law

If the Court follows through with transforming the legislators’ theory into law, American democracy will suffer. The theory wouldn’t just give broad license to extreme gerrymanders that would allow politicians to entrench themselves permanently against the voters’ will. It could also create pathways to invalidate basic and essential regulations created by state election officials to ensure that the machinery of elections works and that people can vote securely in emergencies. It could similarly undercut long-running state constitutional protections that shield people from discrimination at the ballot box and let them cast ballots in secret. It would place all the authority for future rule-making in the hands of state legislatures, among the most radically partisan political actors in the country today. It would hobble state courts’ authority to interpret these laws, limit state courts’ ability to review them for lawfulness under state constitutions, and put state courts under the superintendence of the country’s revanchist Supreme Court. That mayhem would result is an understatement.

The court can still reject this dangerous theory. Only four votes are required to decide to hear a case, but five public votes are necessary to make law. Thus far, the justices have been moving their project forward through its below-the-radar and comparatively barebones emergency-appeals docket. Going forward, though, the case will be on what’s known as the Court’s merits docket, attracting everything that entails: full briefing by the parties (and this case has many of them) and friends of the court, public argument, and months of scrutiny in the press and on social media.

Any justice ultimately seeking to write an opinion in favor of the independent-state-legislature theory will struggle to produce a credible one in the face of the overwhelming facts and law opposing it. Any such opinion will be even more transparently judicial fiat than even the Court’s recent roundly, and rightly, derided opinions expanding gun rights and eliminating constitutional protections for abortion rights.